By: Samantha Hong and Jacqueline J. Chan
California recently signed into law SB 343, “Truth in Labeling for Recyclable Materials,” establishing new requirements and restrictions regarding use of the commonly employed “chasing arrows” symbol ♻, or any other statement or symbol regarding product/packaging recyclability, that go far beyond federal guidelines in the Federal Trade Commission’s (FTC) Guides for the Use of Environmental Marketing Claims (“Green Guides”).
In short, SB 343 prohibits the use of the chasing arrows symbol[1] unless the product is made from materials that are deemed “recyclable” in accordance with the new law. The law directs California’s Department of Resources Recycling and Recovery (CalRecycle) to take steps to determine which materials are recyclable, and companies have until the later ofJanuary 1, 2024, or 18 months after CalRecycle publishes its first material characterization study (discussed further below), to comply with these new restrictions.[2] California Governor Newsom signed SB 343 into law along with several other bills regarding environmental regulation, including, for example, AB 1201, which restricts the use of “compostable” claims on product labels unless certain criteria have been satisfied.
We describe SB 343 in further detail below, but first, a few key takeaways:
- Compliance with the FTC’s Green Guides for “recyclable” claims will no longer be sufficient in California; such claims may only be used on products or packaging that meet California’s definition for “recyclable.” We recommend that companies start inventorying packaging bearing the chasing arrows symbol and/or other recyclable claims in preparation for further guidance from CalRecycle.
- Products or packaging consisting of multiple material types may bear a chasing arrows symbol or statement indicating recyclability on the recyclable external packaging only if accompanied by a clear statement of which components are not recyclable.
- Existing substantiation documentation requirements related to broad environmental benefit claims (i.e., “earth friendly,” “environmentally safe,” and “green product”) now will apply to use of the chasing arrows symbol or other “recyclable” claims, and such documentation must be provided to the public upon request.
- Wholesalers and retailers that do not initiate the recyclability representation through advertising or on the package will not be deemed to have made the representation.
- Resin codes cannot be placed in a chasing arrows symbol and must instead be placed in a solid equilateral triangle.
Existing Requirements Regarding Environmental Marketing Claims
Prior to SB 343, California law permitted the use of environmental marketing claims if adequately substantiated by competent and reliable evidence, but otherwise prohibited any untruthful, deceptive, or misleading claims.[3] Importantly, California law generally tied permissible environmental marketing claims to the FTC’s Green Guides by expressly providing that conformance with FTC’s Green Guides—which allow for the use of chasing arrows symbols if appropriately substantiated and qualified—would serve as a defense to any lawsuit or complaint brought regarding the use of environmental marketing claims.[4]
New Labeling Restrictions Under SB 343 Regarding Use of the Chasing Arrows Symbol and Other Recyclability Claims
Now under SB 343, the use of the chasing arrows symbol, or any other symbol or statement regarding recyclability, is automatically deemed deceptive or misleading unless the product or packaging is considered “recyclable” by the State of California andis of a material type and form “that routinely becomes feedstock used in the production of new products or packaging.”[5] The law eliminates compliance with FTC’s Green Guides as a defense to claims for violations of this new requirement. Notably, however, the law states that a wholesaler or retailer who does not initiate the recyclability claim through advertising or on the package will not be deemed to have made the representation.
Accordingly, by January 1, 2024, CalRecycle must update its disposal facility regulations to require the submission of information regarding materials collected and processed, and based on this information, must conduct a material characterization study (to be updated every 5 years) to determine whether a particular material type and form is recyclable pursuant to the following requirements:
- The material type and form is collected for recycling by recycling programs for jurisdictions that collectively encompass at least 60% of the state’s population; and
- The material type and form is sorted into defined streams for recycling processes by large volume transfer or processing facilities and collectively serve at least 60% of the recycling programs statewide.
A product or packaging is not recyclable if:
- It is not designed to ensure recyclability and includes any components, inks, adhesives, or labels that prevent recyclability;
- It contains certain intentionally added chemicals; or
- It is made from plastic or fiber containing PFAS that a manufacturer has intentionally added to have a functional or technical effect, or that measures at or above 100 ppm total organic fluorine.
Notwithstanding the above requirements, a product or packaging is recyclable if:
- It has a demonstrated recycling rate of at least 75% (i.e., not less than 75% of the product or packaging sorted and aggregated in California is reprocessed into new products or packaging);
- It is not collected pursuant to a curbside collection program and the non-curbside collection program recovers at least 60% (75% after January 1, 2030) of the product or packaging and the material has sufficient commercial value to be marketed for recycling; or
- It is part of, and in compliance with, a program established on or after January 1, 2022, governing its recyclability or disposal if the director of CalRecycle determines that the product or packaging will not increase contamination of curbside recycling or deceive consumers as to its recyclability.
Of note, SB 343 clarifies that if a product or packaging consists of multiple material types, such product or packaging may bear a chasing arrows symbol or recyclability statement on the external packaging so long as:
- The external packaging meets California’s “recyclable” definition, and
- The chasing arrows symbol or recyclability statement is accompanied by a clear explanation in the same or greater font, font size, or symbol size identifying the other components of the product or packaging that are not recyclable.
These new labeling restrictions related to the chasing arrows symbol and other related recycling claims do not kick in until 18 months after the Department publishes its first material characterization study, or January 1, 2024, whichever is later.
Other Changes Under SB 343
SB 343 additionally modifies existing resin identification code requirements for rigid plastic bottles and containers. Currently, California law requires all rigid plastic bottles and rigid plastic containers to be labeled with a code placed in a triangle that indicates the resin used to produce the bottle or container.[6] SB 343 now prohibits the placement of such codes in a chasing arrows symbol unless the product is deemed recyclable pursuant to the standards described above.
Lastly, and significantly, SB 343 extends existing substantiation documentation requirements for broad environmental marketing claims—such as “earth friendly,” “environmentally safe,” and “green product”[7]—to use of the chasing arrows symbol or other “recyclable” claims on labels and in advertising. Such documentation must be provided to anyone who requests it. The required documentation includes:
- Explanation of why the claim is true;
- Any significant adverse environmental impacts directly associated with the production, distribution, use, and disposal of the product;
- Measures taken to reduce the environmental impacts directly associated with the production, distribution, and disposal of the product;
- Violations of any federal, state, or local permits directly associated with the production or distribution of the product;
- Whether the product conforms with the FTC Green Guides’ use of the terms, “recycled,” “recyclable,” “biodegradable,” “photodegradable,” or “ozone friendly”; and
- If using the term “recyclable,” the chasing arrows symbol, or otherwise directing a consumer to recycle the product, the product meets all criteria for statewide recyclability.
For the Future
While industry has until at least 2024 to shift its practices in accordance with SB 343, the scope of the new law’s impact will substantially depend on CalRecycle’s approach to assessing whether a material is “recyclable” as well as interpretations of the exceptions to recyclability set forth above. For instance, what constitutes a demonstrated recycling rate of 75%? Under what circumstances does a material have “sufficient commercial value” for recycling? What framework will CalRecycle use to determine that a product “will not increase contamination of curbside recycling”? All of this remains to be seen.
Moreover, industry should be on the lookout for FTC’s planned review and update of its Green Guides in 2022, which will undoubtedly shed additional light on the future use of the chasing arrows symbol and other related symbols and statements. We will continue to monitor any new developments on laws and policies impacting environmental marketing claims.
[1] A “chasing arrows symbol” is defined in SB 343 as “an equilateral triangle, formed by three arrows curved at their midpoints, depicting a clockwise path, with a short gap separating the apex of each arrow from the base of the adjacent arrow.”
[2] Compliance will be based on the manufacture date. Specifically, the law does not apply to any product or packaging that is manufactured up to 18 months after the date CalRecycle publishes its first material characterization study, or before January 1, 2024, whichever is later.
[3] Ca. Business & Professions Code, Sec. 17580.5(a).
[4] Ca. Business & Professions Code, Sec. 17580.5(b).
[5] The following products are exempt from these requirements: (1) a product required by federal or California law to display a chasing arrows symbol (including related to the federal Mercury-Containing and Rechargeable Battery Management Act and California’s Health and Safety Code, section 25215.65), and (2) a product that is a beverage container subject to the California Beverage Container Recycling and Litter Reduction Act.
[6] Ca. Public Resources Code, Sec. 18015.
[7] Ca. Business & Professions Code, Sec. 17580(a).